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Sessions Says He's Looking For Judicial Restraint Sessions Says He's Looking For Judicial Restraint

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Sessions Says He's Looking For Judicial Restraint

New Ranking Member On Senate Judiciary Panel Describes What He's Seeking In A Supreme Court Nominee

Sen. Jeff Sessions, R-Ala., demonstrated to a clutch of reporters on Tuesday that after more than two decades, he can still recount in detail the sting of being a judicial nominee on the losing side of a fight. In 1986, Sessions failed to win the approval of the Senate Judiciary Committee when President Reagan nominated the young U.S. attorney from Mobile to become a federal judge. Pennsylvania Sen. Arlen Specter, then a Republican, voted against him, as did former Sen. Joe Biden, D-Del, who was then the ranking Democrat on the panel. Sessions' detractors complained at the time that the nominee had made a series of racially insensitive remarks, calling the NAACP and the American Civil Liberties Union "un-American," among other things. But bygones are bygones, Sessions said this week. "We are past that."


Now 62, and in his third term in the Senate, Sessions this week won the support of his GOP colleagues to become the ranking member of the Judiciary Committee after Specter announced he was switching parties. In a plot twist fiction writers could appreciate, Sessions will now lead conservatives' scrutiny of President Obama's nominee to succeed retiring Supreme Court Justice David Souter. Sessions agreed that his experience as a nominee will give him him empathy -- among the attributes Obama values and conservatives decry -- although he was quick to say he will object to any Supreme Court pick who would substitute bias or personal preferences for the rule of law. Edited excerpts from National Journal's Alexis Simendinger follow. Visit the archives page for more Insider Interviews.

Q: Do you believe the opposition by then-Sen. Barack Obama to nominees John Roberts and Samuel Alito to join the Supreme Court offer you and Republicans more leeway to oppose President Obama's nominee to succeed Justice Souter?

Sessions: It doesn't affect me much. But I think somebody could argue that he filibustered Alito -- somebody with fabulous qualities like Judge Alito -- and somebody could say, "How can you complain about me filibustering?"


But I'm hopeful we'll avoid the filibuster approach. I hope the president will nominate somebody who will garner broad support. He should be able to. The defining issue tends to be for me whether the judge would subordinate his personal, political, social, moral views to the law. And if a judge won't do that, then I have serious problems with that judge.

Q: In other words, not an activist judge?

Sessions: That's how I define an activist judge -- one who allows his personal views to justify twisting the law to make it say what they want it to say. And when you start doing that, you undermine the awesome respect the law has and the willingness of millions of Americans to accept rulings even if they disagree with them. If they find that the emperor has no clothes, and that this is a political decision and not a legal decision, then the whole agenda is threatened -- the whole heritage of law.

Q: How does it feel to be the top Republican on the committee that rejected you in 1986?


Sessions: [Grinning] Oh, I don't worry about that. You know, we have a lot of fun. Some of the members were there at that time. We are all past that. Senator [Edward] Kennedy and I get along really well. One time Vice President Biden said, "Sessions, if I'd let you be a judge, I wouldn't have to put up with you now" -- which I thought was pretty good.

Q: Conservatives say they are happy with your new role because they see you as a reliable conservative vote. Do you buy that?

Sessions: I'm a vote in Judiciary matters for the classical rule of law, and I am not for this postmodern mentality that everything is politics, that everything is maneuvering. I practiced law and I've gone to court, and I am for great judges. And if you show them the law is with you, they will rule with you every time, not part of the time -- they will rule with you every time. We've got politicians that are so far away from the daily practice of law sometimes that they don't understand that. So my whole driving force is to protect that legal system.

Q: When you hear President Obama talk about nominating someone to the court who has empathy and real-world experience, do you understand what he means?

Sessions: I don't know what he means. And it's dangerous, because I don't know what empathy means. So I'm one judge and I have empathy for you and not this party, and so I'm going to rule for the one I have empathy with? So what if the guy doesn't like your haircut, or for some reason doesn't like you, is he now free to rule one way or the other based on likes, predilections, politics, personal values?

The core strength of American law is that a judge puts on that robe and he says, "I am unbiased; I'm going to call the balls and strikes based on where the pitch is placed, not on whose side I'm on. I don't take sides in the game."... Now, President Obama said some other things that are classical independence of the judiciary, and that they should follow the Constitution. So I guess we'll know more when we see the nominee.

Q: There were questions about your feelings about civil rights back in the '80s. Was that controversy overblown?

Sessions: Oh, I mean, I supported the [Justice Department's] Civil Rights Division on every case they brought in the Southern District of Alabama. They said I blocked one investigation, and then right before the hearing, they had to find out that my predecessor blocked some case or objected to some case -- which he probably had a right to object to -- but I never had. And it was that kind of thing.

We prosecuted a voting rights case that I believe was well-founded, which became a national issue. It was a case in which the defendants -- we had five African-Americans -- first, it was dealing with two African-American groups in a county that was majority African-American. And the evidence came out that, for example, one family of five sealed up their absentee ballots -- they had voted for their cousin -- but it wasn't the slate of the guy who picked up the ballots, and they said he changed, scratched out the name and put the X by the guy he wanted.

Q: You were 38 when you were nominated. You still remember that kind of detail?

Sessions: Well, I remember that case because I had to eat it. [chuckles]

Q: A lot of the controversy was around statements that you had made.

Sessions: I know. And who was present? There were two lawyers from the Civil Rights Division, and one of them was Barry Kowalski, who was the most prominent prosecutor of major civil rights cases in America -- maybe in the history of America -- and he testified at the [confirmation] hearing that it meant nothing and that I would be a good judge. But it didn't make much difference at the time. It didn't make any difference. They made up their mind.

Q: Can you characterize your position on civil rights?

Sessions: I am absolutely a firm supporter of equal rights for every American. I always have been and I always will be. That is a cornerstone of law. Nobody should be discriminated against. Now, we had discrimination in the South. There was no doubt about it. So that's what the civil rights movement was all about.

Now, when I was out there, I signed 10 pleadings attacking segregation or the remnants of segregation, where we as part of the Department of Justice, we sought desegregation remedies -- the takeover of school systems, redrawing lines -- all those things that I was allowed to participate in supporting.

So, I really -- it was not a pleasant experience. But one of the things that I learned from that was that a nominee can be unfairly abused. I mean, you're up there and they throw out somebody on the committee or otherwise make some charge and you don't have a very good opportunity to rebut it.

Q: It sounds like that's going to give you some empathy for the nominee.

Sessions: I've said that many times. I have a lot of empathy for the poor slob sitting down there.

Q: That would be a real-world experience?

Sessions: Yeah, that's a real-world experience. But someone sitting down at the committee, and all high-morality, you know, judging this poor slob, who's always tried to do the right thing, and looking at his record. Well, what was he thinking? What were the facts? What were all the circumstances that led to this decision? Sometimes people make a mistake. Sometimes they didn't make a mistake at all and they get criticized for it.

Q: Are you looking forward to it?

Sessions: Yeah, I'm looking forward to it. I am excited about it. I mean, 15 years as a federal prosecutor -- I tried a lot of cases, big-time cases, before federal judges, and I think I understand what goes on every day before courts of law. But a lot of our members are so infected with the political process that they don't understand that. I mean, I love the practice of law, and it's just a wonder what we have in this country, and it is so unique.

Q: What do you say when you hear some moderate Republicans worry that you might lend the party a face that is more conservative, more Southern-sounding or more contentious than they think the party needs right now?

Sessions: I think we have to do the right thing. And so I think our committee should follow our principles. But I'm just one member. I had my views when Senator Specter was chairman, and I didn't always agree with him. So I just have one vote. I'm not the spokesman for the Republican Party. I have a responsibility to try to work with our colleagues and make sure that everybody gets the chance to have their say -- which I think Arlen Specter did a good job on. Even if he didn't agree with someone, he would push the chairman to make sure we had our chance to at least get our amendment. So that's about all you do. I don't speak for the Republican Party on legal issues; I only speak for myself.

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